U.S. v. Thompson, s. 85-2422

• Decision Date: 25 March 1987
• Docket Number: 85-2867,Nos. 85-2422,s. 85-2422
• Citation: 814 F.2d 1472
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Horace Greely THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1472

814 F.2d 1472

UNITED STATES of America, Plaintiff-Appellee, v. Horace Greely THOMPSON, Defendant-Appellant.

Nos. 85-2422, 85-2867.

United States Court of Appeals, Tenth Circuit.

March 25, 1987.

C. Merle Gile, Oklahoma City, Okl., for defendant-appellant.

Robert Mydans, Asst. U.S. Atty. (William S. Price, U.S. Atty., and Stephen J. Korotash, Asst. U.S. Atty., on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before BARRETT, McKAY and MOORE, Circuit Judges.

McKAY, Circuit Judge.

On July 3, 1985, pursuant to a plea agreement, defendant, Horace G. Thompson, pled guilty to a one-count information of conspiracy to commit mail fraud. The court accepted the guilty plea but deferred sentencing. Two months later, before sentencing, the Government moved to set aside the plea agreement on the ground that defendant had violated the agreement. The district court granted the Government's motion and dismissed the information. Defendant appealed from the dismissal. A grand jury subsequently indicted him on eight counts of mail fraud and one count of conspiracy to defraud the United States. Defendant then moved to dismiss the indictment on double jeopardy grounds, alleging that the indictment charged him with the same offense to which he had already pled guilty. The district court denied the motion, and defendant appealed. Both appeals are now before this court.

The issues in the first appeal are (1) whether an order vacating the plea agreement and dismissing the information is immediately appealable as a final judgment, and (2) if so, whether the trial court properly vacated the plea agreement.

The issues in the second appeal are (1) whether defendant is entitled to an interlocutory appeal of the pretrial order denying his motion to dismiss the indictment, and (2) if defendant is entitled to an appeal, whether or not the indictment is barred on double jeopardy grounds.

The right to appeal is created by statute. For defendant to be able to appeal at this time, therefore, his appeals must fall within either the statutory provision or the common-law exception to the statute. Federal law permits appellate courts to review "all final decisions of the district courts...." 28 U.S.C. Sec. 1291 (1982), and courts have strictly adhered to the policy of finality to avoid piecemeal review. United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 102 S.Ct. 3081, 3082, 73 L.Ed.2d 754 (1982). "Adherence to this rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon intermediate appeal,' which the rule is designed to avoid, 'are especially inimical to the effective and fair administration of the criminal law.' " Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (quoting DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962)).

I.

Defendant argues that the district court orders to vacate the plea agreement and to dismiss the information are final orders and, therefore, immediately appealable. We first address the trial court's dismissal of the information. In a criminal case, a decision is not final until both conviction and imposition of sentence. See Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1053, 79 L.Ed.2d 288 (1984); Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 165, 82 L.Ed. 204 (1937); United States v. Romero, 642 F.2d 392, 397 (10th Cir.1981). Thus, the district court's order dismissing the information is not a final order, because it neither convicted nor sentenced defendant, and he has not been convicted since. ¹ Moreover, the Supreme Court has specifically held a dismissal without prejudice to be an interlocutory step in the prosecution. Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956).

In Parr, petitioner was indicted in one division of the Federal District Court for the Southern District of Texas. The trial court granted his motion to transfer the case to another division. The Government subsequently obtained a new indictment in a different division and moved to dismiss the original indictment. Petitioner appealed from the trial court's grant of the motion to dismiss. The Supreme Court affirmed the appellate court's decision that it had no jurisdiction to hear an appeal from the dismissal of an indictment. Looking at the indictments first in isolation and then as part of the same prosecution, the Court found no basis for petitioner's claim of jurisdiction to appeal.

Because the information and indictment in this case are in two separate proceedings, ² we rely on the Court's initial analysis in Parr. Like petitioner in Parr, Mr. Thompson was not injured by the dismissal of the information because the judgment was terminated in his favor, and only one who has been injured by a judgment may seek review on appeal. Id. at 516-17, 76 S.Ct. at 915. "So far as petitioner's standing to appeal is concerned, it makes no difference whether the dismissal still leaves him open to further prosecution.... The testing of the effect of the dismissal order must abide petitioner's trial, and only then, if convicted, will he have been aggrieved." Id. at 517, 76 S.Ct. at 915.

Defendant fares no better with his argument that vacation of the plea agreement was a final order. By vacating the plea agreement, the court neither convicted defendant nor sentenced him. Thus, the court's decision was not a final order for purposes of appeal. As with the dismissal order, we believe that "[t]he testing of the effect of the [vacation] order must abide petitioner's trial...." Id. Thus, neither the vacation of a plea agreement nor the dismissal of an information are properly before this court as appeals from a final decision.

Moreover, defendant's claim merits no further consideration under the "collateral order" exception first articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). A collateral order may be considered a final decision for purposes of section 1291 if it fits within the narrow group of claims "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. at 1226. Generally, the Supreme Court narrowly interprets this exception and, in criminal cases, has permitted interlocutory appeal of a pretrial order in only three instances in its name. ³ The Court has already foreclosed Mr. Thompson's argument with respect to the information dismissal. Parr, 351 U.S. at 519, 76 S.Ct. at 916. Therefore, we are left with the issue of whether voiding a plea agreement falls within the collateral order exception.

The Supreme Court has outlined three factors that must be satisfied in order to qualify an order for interlocutory appeal. To determine whether vacation of a plea agreement falls within that small group satisfying the exception, we must consider whether it (1) conclusively determines the disputed question, (2) resolves an issue completely collateral to the cause of action, and (3) would be effectively unreviewable on appeal from final judgment. Abney, 431 U.S. at 658, 97 S.Ct. at 2039.

The Supreme Court emphasized the importance of the third factor when it noted that each application of the exception to the finality doctrine involved "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." Hollywood Motor Car Co., 458 U.S. at 266, 102 S.Ct. at 3083 (quoting United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978)) (appeal from denial of motion to dismiss indictment for violation of right to a speedy trial is not entitled to interlocutory review because the protection is only from delay, not from the trial itself). Although defendant was subsequently indicted after the court's vacation of the plea agreement, that indictment is not before us in this first appeal. The appeal before us challenges only the order to vacate the plea agreement. Therefore, this appeal is from one who has not been injured by the trial court's action; rather, defendant was released from his guilty plea, with no guarantee that a new grand jury would again indict him if the Government chose to pursue it. More to the point than the absence of injury, however, the plea vacation is not "effectively unreviewable on appeal from final judgment" under Cohen and its progeny. Simply put, the issue of whether defendant violated the plea agreement, the only substantive issue before us on this first appeal, can be fully reviewed and redressed by this court on direct appeal if defendant is eventually convicted. See United States v. Eggert, 624 F.2d 973, 975-76 (10th Cir.1980) (per curiam) (denying interlocutory appeal of district court's denial of motion to dismiss indictment when the argument underlying defendant's motion was that the Government had violated a prior plea agreement). Defendant may be awarded any relief to which he is entitled at that time. There is no justification to consider defendant's claims before then. Because the district court's order in this case clearly does not meet the third Abney factor, we need not consider whether it meets the other two. This first appeal is therefore dismissed for lack of final judgment.

II.

In his second appeal, defendant claims that the indictment filed against him should be dismissed on double jeopardy grounds. The double jeopardy clause of the fifth amendment prohibits successive prosecution for the same offense after acquittal or conviction and prohibits multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Defendant alleges that jeopardy attached when he pled guilty to the information charging him with conspiracy to commit mail fraud under 18 U.S.C. Sec. 371 (1982). He...